44 Mich. 391 | Mich. | 1880
The complainants ask to be protected in their right to the use and enjoyment as a highway of a strip of land which would be the line of Guoin street in the city of Detroit if said street were extended easterly past certain premises owned by them, and to have defendants restrained from closing up as a street said strip, and that they may be required to remove a certain brick office which they have lately erected partly within the limits of said strip.
The defendants insist that the bill is silent as to whence they derive their title, and as to the ownership of the strip in controversy ; that the defendants are in possession of this strip and presumably are the owners thereof, and although the evidence may show sufficient to entitle complainants to relief, yet they must fail under the familiar and well-settled law of this State which denies relief upon a case proved but not set up in the bill.
We shall therefore first look to the bill in order to ascertain what is there set forth, and in so doing we must bear in mind that the complainants do not seek relief upon the ground that this strip had ever been dedicated or opened as a public highway, but that their grantor in selling and conveying certain premises to them bounded the same on this strip as a street. Their position is that the purchase of a lot described as bounded on a street, estops the grantor and his privies from shutting it up or obstructing it, so as to prevent his grantees making use of it for their own accommodation in the enjoyment of their purchase. Smith v. Look 18 Mich. 56.
Where the defendants in such a case answer claiming the benefit of a demurrer therein, the court will not require the same particularity in setting out the sources of defendants’ ‘title as might be required upon special demurrer. ■
The bill sets forth that George B. Russel being the owner
While these allegations might have easily been so framed as to allege more clearly and distinctly Russel’s ownership in the disputed premises at the time he conveyed to complainants, yet under the pleadings we are of opinion that the only fair reasonable inference or conclusion to be drawn is that Russel was then the owner. The acts and sayings were those of an owner and we think the fact is sufficiently alleged.
The bill farther alleges that westerly of complainant’s premises, and fronting on the northerly line of Guoin street if extended, are certain premises occupied by defendants, and being fifty feet or the width of said Guoin street distant from complainants’ premises. The bill then sets forth the encroachments, and alleges that Russel, their grantor, claims that he has the premises covered by said contemplated street and that while he acknowledges complainants’ right, yet that he insists upon such title and is a necessary party defendant.
It will thus be seen from the allegations in the bill that it sufficiently appears to entitle complainants to relief, if proved that defendants are not the owners of the disputed strip and are bound to recognize and respect complainants’ right therein, in that it appears that Nussel was and is the owner of this disputed strip; that defendants’ premises front on the northerly side of said strip, and that they are subsequent purchasers from Nussel through the mortgage referred, to. When we come to. examine the evidence in the case it is clear and explicit; indeed, no serious question was raised upon this part of the case.
It is insisted by the defendants’ counsel that complainants have not sought the proper forum or remedy and that courts of chancery will not order a finished building to be torn down and destroyed but will leave the parties to seek a remedy in a court of law.
Counsel for defendants were not very successful in pointing out what proper or adequate remedy complainants would have under such a state of facts in a court of law. They are not the owners in fee of this strip : ejectment could not be maintained by them for it; and even if they could maintain an action for damages the remedy would'be inadequate. The street or strip in question is not an open public street where the ordinary remedies for an. obstruction thereof could be resorted to, but is one which these complainants as against their grantor and his privies and strangers or trespassers are entitled to have kept free and unobstructed. As to them the obstruction is a private nuisance.
.While it may be true as a general rule that courts of chancery will not order the destruction of a building under ordinary circumstances, yet where a party against objection has
The structure complained of in this case is a small one-story brick office and projects into this way about twenty-five feet. It can probably be easily removed, and if not, can be torn down without causing very serious damage; of this defendants knowingly ran the risk and must now accept the consequences.
The decree below dismissing the bill will be reversed, and a decree entered in this court in accordance herewith, with j costs of both courts.